Citation Nr: 1000079	
Decision Date: 01/04/10    Archive Date: 01/14/10

DOCKET NO.  06-24 668	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an initial rating higher than 10 percent 
for a lumbosacral strain. 

2. Entitlement to an initial rating higher than 10 percent 
for a left ankle sprain. 

3. Entitlement to an initial rating higher than 10 percent 
for chondromalacia of the right knee, including surgical 
residuals. 

4. Entitlement to an initial rating higher than 10 percent 
for varicose veins of the right leg. 

5. Entitlement to an initial rating higher than 10 percent 
for varicose veins of the left leg. 

6. Entitlement to an initial compensable rating for a right 
ankle sprain. 

7. Entitlement to an initial compensable rating for scarring 
due to stasis ulcers of the right lower extremity. 

8. Entitlement to an initial compensable rating for scarring 
due to stasis ulcers of the left lower extremity. 
REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J. Fussell, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from 
October 1980 to September 2005. 

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision in January 2006 of a 
Department of Veterans Affairs (VA) Regional Office (RO) 

In August 2006, the Veteran agreed to an Informal Hearing 
Conference in lieu of a personal hearing.  A report of 
informal hearing is in the record. 


FINDINGS OF FACT

1. The manifestations of the lumbosacral strain are flexion 
greater than 60 degrees, the combined range of motion of the 
lumbar spine is greater than 120 degrees, and there is no 
muscle spasm or guarding severe enough to result in an 
abnormal gait or abnormal spinal contour; also there are no 
incapacitating episodes having a total duration of at least 
two weeks but less than four weeks during a twelve month 
period. 

2. The residuals of a left ankle strain are manifested by no 
more than moderate limitation of motion, and there is no 
ankylosis or malunion of the ankle and impairment that more 
nearly approximates ankylosis of the ankle is not 
demonstrated.

3. The surgical residuals of chondromalacia of the right knee 
are manifested by full flexion and full extension and an 
absence of any subluxation or instability. 

4. The Veteran has only mild varicose veins of the right leg 
and there is no stasis pigmentation or eczema. 

5. The Veteran has only mild varicose veins of the left leg 
and there is no stasis pigmentation or eczema. 

6. The residuals of a right ankle strain are full range of 
motion and there is no ankylosis or malunion of the ankle and 
impairment that more nearly approximates ankylosis of the 
ankle is not demonstrated. 

7. The scars due to stasis ulcers of the right lower 
extremity are superficial, stable, nontender, and are not 
productive of functional impairment. 

8. The scars due to stasis ulcers of the left lower extremity 
are superficial, stable, nontender, and are not productive of 
functional impairment. 


CONCLUSIONS OF LAW

1. The criteria for an initial rating higher than 10 percent 
for a lumbosacral strain are not met. 38 U.S.C.A. §§ 1155, 
5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.7, 4.40, 
4.45, 4.59, Diagnostic Codes 5003 and 5237 (2009). 

2. The criteria for an initial rating higher than 10 percent 
for a left ankle sprain are not met. 38 U.S.C.A. §§ 1155, 
5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.7, 4.40, 
4.45, Diagnostic Code 5271 (2009). 



3. The criteria for an initial rating higher than 10 percent 
for chondromalacia of the right knee, including surgical 
residuals, are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 
2002 & Supp. 2009); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 
4.71a, Diagnostic Codes 5003, 5014, 5257, 5260, 5261 (2009).  

4. The criteria for an initial rating higher than 10 percent 
for varicose veins of the right leg are not met. 38 U.S.C.A. 
§§ 1155, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. § 4.7, 
Diagnostic Code 7120 (2009). 

5. The criteria for an initial rating higher than 10 percent 
for varicose veins of the left leg are not met. 38 U.S.C.A. 
§§ 1155, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. § 4.7, 
Diagnostic Code 7120 (2009). 

6. The criteria for an initial compensable rating for a right 
ankle sprain are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 
2002 & Supp. 2009); 38 C.F.R. §§ 4.7, 4.40, 4.45, Diagnostic 
Code 5271 (2009). 

7. The criteria for an initial compensable rating for 
scarring due to stasis ulcers of the right lower extremity 
are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 
2009); 38 C.F.R. § 4.7, Diagnostic Code 7804 (2009). 

8. The criteria for an initial compensable rating for 
scarring due to stasis ulcers of the left lower extremity are 
not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 
2009); 38 C.F.R. § 4.7, Diagnostic Code 7804 (2009). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA amended VA's duties to notify and to assist a 
claimant in developing information and evidence necessary to 
substantiate a claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159. 



Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA 
receives a complete or substantially complete application for 
benefits, it will notify the claimant of the following: (1) 
any information and medical or lay evidence that is necessary 
to substantiate the claim, (2) what portion of the 
information and evidence VA will obtain, and (3) what portion 
of the information and evidence the claimant is to provide.  
The notification requirements are referred to as Type One, 
Type Two, and Type Three, respectively.  Shinseki v. Sanders, 
129 S. Ct. 1696 (2009). 

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: (1) 
veteran status; (2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
(4) degree of disability; and (5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In a claim for increase, the VCAA notice requirements are the 
type of evidence needed to substantiate the claim, namely, 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on 
employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. 
Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring 
generic claim-specific notice and rejecting veteran-specific 
notice as to effect on daily life and as to the assigned or a 
cross-referenced Diagnostic Code under which the disability 
is rated).

The VCAA notice must be provided to a claimant before the 
initial unfavorable adjudication by the RO.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).



On the initial rating claims, the claims were developed while 
the Veteran was still on active and it presumed that the VA 
provide the Veteran with the proper notice on the underlying 
claims of service connection.  Where, as here, service 
connection has been granted and an initial disability ratings 
have been assigned, the claims of service connection have 
been more than substantiated, the claims have been proven, 
thereby rendering 38 U.S.C.A. § 5103(a) notice no longer 
required because the purpose that the notice was intended to 
serve has been fulfilled.  

Once the claims of service connection have been 
substantiated, the filing of a notice of disagreement with 
the RO's decision rating the disabilities does not trigger 
additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further 
VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is 
no longer applicable in the claims for initial higher 
ratings, following the initial grants of service connection.  
Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 
112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 
(2008).

Duty to Assist

As required by 38 U.S.C.A. § 5103A, VA has made reasonable 
efforts to identify and obtain relevant records in support of 
a claim. 

The RO has obtained the Veteran's service treatment records 
and VA records. The Veteran has submitted private medical 
treatment records.   

The Veteran was afforded VA examinations for the claims.  
McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. 
Principi, 326 F.3d 1381 (Fed. Cir. 2003).  38 U.S.C.A. 
§ 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 

In July 2009, the Veteran's representative argued that the 
record does not disclose that a goniometer was used to 
measure range of motion of the knees and ankles.  The 
representative's bare allegation is an insufficient basis for 
a reexamination under 38 C.F.R. § 3.327 (a reexamination will 
be required if the evidence indicates a material change in 
the disability or that the rating may be incorrect).

As there is no indication of the existence of additional 
evidence to substantiate the claims, the Board concludes that 
no further assistance to the Veteran in developing the facts 
pertinent to the claims is required to comply with the duty 
to assist


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Facts 

On VA examination in July 2005, it was reported that the 
Veteran began to have problems with lower extremity 
varicosities in about 1983 and experienced stasis 
ulcerations.  He had a vein stripping procedure of the left 
leg in 1986 or 1987 and on the right leg in 1989. There was 
some improvement thereafter but he occasionally still 
experienced some ulceration which was treated with steroidal 
creams and the varicosities were treated with support hose.  
The Veteran complained of constant and daily pain, weakness, 
stiffness, fatigue, and lack of endurance in the ankles, 
right knee, and low back.  His treatment for this had been 
conservative and included rest, nonsteroidal anti-
inflammatory drugs, and physical therapy which had provided 
some help, but had not resolved the symptoms. Precipitating 
factors included physical activity and inclement weather, and 
alleviating factors were rest and medication.  He had not had 
any dislocations or subluxations.  

For the lumbar spine, the Veteran stated that he pain, but 
there was no history of numbness, weakness, bladder 
complaints, bowel complaints or erectile dysfunction. There 
was pain in the left lower extremity extending to the calf.  
The pain did not prevent him from walking, but often caused 
discomfort either during or following such activity.  He had 
no unsteadiness when walking, and he had not been placed on 
restricted bed rest by a physician for incapacitating pain in 
the past 12 months. 

Other limitations included difficulty navigating stairs, 
walking, running long distances, standing stationary, and 
sitting for extended time.  Walking could sometimes be 
difficult, and if spasm was present it could cause listing.  
Simple tasks, donning socks or tying shoes, were sometimes 
difficult. 

The Veteran had had right knee surgery in 1995 consisting of 
debridement and a plica resection for chondromalacia but he 
reported not having had any improvement postoperatively.  All 
of his musculoskeletal conditions during service had 
gradually and progressively worsened with time, which 
interfered with his ability to fully enjoy recreational 
activities, but he was able to do the activities of daily 
living. 

On physical examination, the Veteran's posture and gait were 
normal.  There was scarring secondary to stasis ulceration.  
On the left and right heels, there were several statis 
ulceration scars.  The scars were hypo-pigmented, but were 
not raised or depressed and without appreciable tissue loss 
or adherence to underlying structures.  

The Veteran had mild varicosities on the lower extremities. 
Other than the scars, there was no brawny appearance and no 
rope-like structures. There was no board-like texture to the 
skin and no edema. 

On range of motion testing, there was no change during 
repetitive movement or when resistance. With respect to pain, 
including pain on repeated use and pain during flare-ups, 
fatigue, weakness, lack of endurance, and incoordination, 
these factors might additionally limit joint function when 
the Veteran was removed from the sphere of a physical 
examination but the examiner could not determine, without a 
resort to mere speculation, whether any of these factors 
caused additional functional loss in the Veteran's personal 
environment. 

With respect to the Veteran' lumbar spine, there was no 
muscle atrophy and no abnormality of posture or gait.  No 
overt deformities were noted.  The straight leg raising test 
was negative.  The extensor hallucis strength was 5/5, 
bilaterally.  The deep tendon reflexes were 2+, bilaterally, 
and symmetric. Sensations were intact. 

There was tenderness to palpation over the lumbar vertebrae 
and paravertebral muscles, bilaterally.  Lumbar flexion was 
to 90 degrees, extension was to 30 degrees, both right and 
left lateral flexion were to 30 degrees, and right and left 
rotation were each to 30 degrees with pain on left rotation 
from 20 to 30 degrees. 

There was mild swelling of the Veteran's right knee.  There 
was tenderness to palpation. There was no effusion and no 
ligament instability.  Range of motion was normal and without 
pain on motion. 

There was no overt deformity of the ankles. There was 
tenderness to palpation, bilaterally, over the anterior 
tibio-fibular ligaments. There was full active range of 
motion, bilaterally, with pain during the eversion of the 
left ankle from 10 to 20 degrees.  

X-rays revealed minimal right patellar tilt and subluxation. 

VA records show that in February 2006 the Veteran was seen 
for gout.  In April 2006 he had essentially healed ankle 
ulcers, and no drainage or fever. The assessments were a 
history of gout, quiescent now; and status post venous 
stripping of legs for venous stasis with stasis ulcers at 
times but not now, and small, very superficially crusted 
over, and essentially healed ulcers, bilaterally, on the 
medial sides of the feet. 

In August 2006, the Veteran submitted color photographs of 
his feet. 

On VA respiratory examination in August 2006, the Veteran had 
no edema of the extremities and he was neurologically intact. 

On VA general medical examination in August 2006, the Veteran 
complained of constant pain in the left side of his low back.  
He had no flare-ups and no other associated symptoms.  He did 
not use any assistive devices and could walk 2 miles without 
difficulty. He had no history of falls. He reported that the 
back problem did not have any effect on his occupation, 
activities of daily living or his ability to drive. Also, he 
had left hip pain, which was the same pain that emanated form 
his low back into his hip.

The Veteran reported that he had bilateral ankle pain with 
weakness, stiffness, and instability.  He had no associated 
flare-ups and he did not use any assistive device. There was 
no effect on his occupation or activities of daily living. 

As for the right knee, the in-service surgery was debridement 
and patellar revision but he had no subsequent surgery. He 
still had pain with weakness, stiffness, swelling, and 
instability.  He had flare-ups of pain two times a week with 
prolonged standing.  He was able to function during the 
flare-ups. He did not use any assistive device, but had noted 
swelling with work.  He had normal activities of daily 
living. 

With respect to his varicose veins, the Veteran reported that 
he developed ulcers on both ankles about every 3 to 6 months 
and the ulcers lasted about 3 to 4 months and would then 
slowly heal. He complained of daily aching in his legs with 
fatigue on prolonged standing that was eased with rest and 
elevation of the legs. He also reported having swelling when 
he had the ulcers but the swelling was eased with the use of 
compression hose and elevation of the legs. His past vein 
stripping had helped but he had aching in his legs on 
prolonged standing at work, but he worked through this. He 
had normal activities of daily living. The use of ointment on 
the resultant leg scars, from the ulcers, provided some help. 

The Veteran reported having developed thoracic spine muscle 
spasm during service and that medication for it had helped. 
He still had intermittent mid-back pain without radiation of 
pain.  The pain occurred about twice a month without any 
cause and lasted for a single day, but eased with rest.  He 
was able to function during these occasions.  He had no 
associated symptoms and did not use an assistive device, but 
did have a back brace. He was able to walk 2 miles without 
difficulty and had no history of associated falls. The 
problem had no effect upon his occupation, activities of 
daily living, or ability to drive. 



The Veteran also reported having received steroidal 
injections during service for heel spurs but he had not had 
any heel pain in the last two years. He was currently 
employed as a security officer at a military base and 
previously was a food service supervisor during service.  In 
the last 12 months he had lost 2 days from work due to acute 
attacks of gout.  He took medication and used an ointment, as 
needed, for ankle ulcers to prevent infections and also for 
pain.  

On physical examination, the Veteran's posture and gait were 
normal. He had well healed scars on the medial portion of 
each leg.  The scars were nontender to palpation and were not 
adherent. There was no irregularity of the scars and the 
scars were stable without elevation or depression. The scars 
were superficial and without inflammation, edema, or keloid 
formation. The scars were somewhat lighter in color than the 
surrounding tissue.  He had varicose veins in the lower 
portion of the lower extremities and superficial varicose 
veins on the feet. The varicose veins were not tender to 
palpation.  The peripheral pulses were present, equal, and 
active in all extremities and there was no edema. 

Flexion of the knees was to 140 degrees and extension was 
full to zero degrees. McMurray's, Drawer's, and Lachman's 
tests were normal. There was no change in motion upon 
repeated and resisted testing. No additional limitation of 
motion was noted. There was no pain, weakness or tenderness.

The Veteran had full range of motion of the ankles with 
dorsiflexion to 20 degrees, plantar flexion to 45 degrees, 
inversion to 30 degrees, and eversion to 20 degrees. There 
was no weakness or tenderness of the ankles. There was no 
change in motion upon repeated and resisted testing. There 
was no additional limitation of motion noted. 

The Veteran had flexion of the lumbar spine to 90 degrees, 
extension to 30 degrees, right lateral flexion to 30 degrees, 
left lateral flexion to 20 degrees, and rotation, in each 
direction, was to 30 degrees. There was pain at the end of 
left lateral flexion at 20 degrees, but without pain from 
zero (0) to 20 degrees. There was no change in motion upon 
repeated and resisted testing. 

There was no additional limitation of motion noted. There was 
no pain, weakness or tenderness in the lumbar area. There was 
no change in spinal contour. There was palpable tenderness in 
the left posterior hip area into the sciatic notch. There was 
good motor strength, bilaterally, in the legs and no atrophy. 
Straight leg raising was negative. 

Neurologically, the Veteran had a normal gait and stance, as 
well as coordination. Deep tendon reflexes were equal and 
active at 2+/4. He had normal sensation to light monofilament 
touch. 

X-rays revealed slight scoliosis and mild hypertrophic 
degenerative changes in the thoracic spine.  X-rays of the 
ankles were negative for fracture or dislocation, although 
there was a small plantar calcaneal spur on the left.  Right 
knee X-rays revealed minimal osteophyte formation of the 
right patella, but the joint space was fairly maintained and 
there was no joint effusion. Lumbosacral X-rays revealed the 
vertebral bodies and interspaces were well maintained and the 
sacroiliac joints and transverse processes were unremarkable. 

On VA psychiatric examination in September 2006 the Veteran 
reported getting fewer sores on his legs since his military 
service and also complained of aching in his legs on 
prolonged standing. He was now employed full-time as a 
security officer and he wanted to go into a job that did not 
require his to be on his feet a lot. He had missed two days 
of work in the last 12 months due to problems with gout. 

VA records show that in April 2007 the Veteran complained of 
low back pain.  He stated that he wanted to try a back brace, 
and he requested medication for pain. He had no neurological 
complaints.  On examination, the straight leg raising was 
negative. There was no weakness and the sensory system was 
intact.  He had full range of motion of the lumbosacral spine 
and there was no spinal tenderness. 



General Rating Principles

Ratings for service-connected disorders are determined by 
comparing current symptoms with criteria in VA's Schedule for 
Rating Disabilities, based on average impairment in earning 
capacity.  Separate diagnostic codes identify the various 
disabilities. 38 U.S.C.A. § 1155.  

A higher rating is assigned if it more nearly approximates 
the criteria thereof.  38 C.F.R. § 4.7.    

The Board will consider whether separate ratings may be 
assigned for separate periods of time based on facts found, a 
practice known as "staged ratings." Fenderson v. West, 12 
Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 
509-510 (2007) (staged ratings may be assigned during the 
appeal of any increased rating claim).   

When the schedule does not provide a zero percent evaluation 
for in a Diagnostic Code, a zero percent evaluation will be 
assigned when the requirements for a compensable evaluation 
are not met.  38 C.F.R. § 4.31. 

When an unlisted condition is encountered, it will be 
permissible to rate the condition under a closely related 
disease or injury in which not only the functions affected 
but the anatomical localization and symptomatology are 
closely analogous.  38 C.F.R. § 4.20.  

Rating factors for a disability of the musculoskeletal system 
include functional loss due to pain supported by adequate 
pathology and evidenced by visible behavior of the claimant 
undertaking the motion, weakness, excess fatigability, pain 
on movement, swelling, or atrophy.  38 C.F.R. §§ 4.40, 4.45; 
DeLuca v. Brown, 8 Vet. App. 202 (1995).  Also with any form 
of arthritis, painful motion is factor to be considered. 38 
C.F.R. § 4.59.



Analysis

Lumbosacral Strain

Lumbosacral strain is rated 10 percent under Diagnostic Code 
5237.  Under Diagnostic Code 5237, lumbosacral strain, the 
criteria for a 20 percent rating based on orthopedic 
manifestations are forward flexion of the thoracolumar spine 
greater than 30 degrees but not greater than 60 degrees, or 
the combined range of motion of the thoracolumar spine not 
greater than 120 degrees (the maximum combined range of 
motion being 240 degrees), or muscle spasm or guarding severe 
enough to result in abnormal gait or abnormal spinal contour.  

Under another applicable Diagnostic Code 5243, intervertebral 
disc syndrome, the disability is rated under the general 
rating for disease and injuries of the spine (outlined above) 
or under the formula for rating intervertebral disc syndrome 
based on incapacitating episodes, whichever method results in 
the higher rating.  

Under Diagnostic Code 5243, the criteria for a 20 percent 
rating are incapacitating episodes have a total duration of 
at least 2 weeks but less than 4 weeks during the past 12 
months.  Incapacitating episodes are acute signs and symptoms 
due to that require bed rest prescribed by and treatment by a 
physician. 

Normal forward flexion of the thoracolumbar spine is 0 to 90 
degrees, extension is 0 to 30 degrees, left and right 
lateroflexion of 0 to 30 degrees, and left and right lateral 
rotation are 0 to 30 degrees.  The combined range of motion 
refers to the sum of the range of forward flexion, extension, 
left and right lateroflexion, and left and right rotation.  
The normal combined range of motion of the thoracolumbar 
spine is to 240 degrees.  

It is clear that the Veteran has not had incapacitating 
episodes for which a physician has prescribed bed rest.  
Also, while the Veteran has at times complained of radicular 
pain, no objective neurological abnormality has been 
identified on either of the VA examinations.  

As for orthopedic manifestations, there is no evidence 
abnormal gait or spinal contour due to muscle spasm or 
guarding.  While X-rays found some scoliosis of the thoracic 
spine, repeated examinations have not clinically documented 
any muscle spasm or guarding.  Flexion is not less than 90 
degrees and the combined range of motion is not less than 210 
degrees.  

As the criteria for the next higher rating under either 
Diagnostic Code 5237 or 5243 have not been met, the 
preponderance of the evidence is against an initial rating 
higher than 10 percent for a lumbosacral strain at any time 
during the appeal period, and the benefit-of-the- doubt 
standard of proof does not apply. 38 U.S.C.A. § 5107(b).

Left Ankle Sprain

The left ankle disability is currently rated 10 percent under 
Diagnostic Code 5271.  Under Diagnostic Code 5271, the 
criterion for the next higher rating, 20 percent, is marked 
limited motion of the ankle. 

With the foot at a 90 degree angle to the ankle, as the 
neutral or starting position, a normal (full) range of ankle 
motion is defined as follows: from 0 degrees to 20 degrees of 
dorsiflexion and from 0 degrees to 45 degrees of plantar 
flexion. 38 C.F.R. § 4.71, Plate II. 

As range of motion of the left ankle in dorsiflexion was full 
on VA examinations in 2005 and 2006, i.e., dorsiflexion of 20 
degrees and plantar flexion of 45 degrees, the range of 
motion does not more nearly approximate or equate to marked 
limitation of motion of the ankle, required for a 20 percent 
rating under Diagnostic Code 5271, considering additional 
functional loss and repetitive use under 38 C.F.R. §§ 4.40, 
4.45, 4.59. 

The Veteran has not had left ankle surgery and although he 
has tenderness of the anterior tibio-fibular ligament, 
consistent with a left ankle strain, as well as pain on 
eversion, there is no evidence of malunion or ankylosis which 
would warrant consideration of Diagnostic Codes 5270, 5272, 
5273, and 5274.  

For these reasons, the preponderance of the evidence is 
against the claim for initial rating higher than 10 percent.  
38 U.S.C.A. § 5107(b).

Chondromalacia of the Right Knee, Including Surgical 
Residuals

The right knee disability is currently rated 10 percent under 
Diagnostic Code 5020 (synovitis).  When substantiated by X-
ray findings either synovitis or osteomalacia is rated as 
degenerative arthritis.  Under Diagnostic Code 5003, 
degenerative arthritis is rated on the basis of limitation of 
motion for the specific joint involved.  

Limitation of motion of the knee is rated under either 
Diagnostic Code 5260 (limitation of flexion) or Diagnostic 
Code 5261 (limitation of flexion).  And a separate rating may 
be assigned for each, that is, for limitation of flexion and 
for limitation of extension. Normal flexion (bending) of the 
knee is to 140 degrees and normal extension is to zero (0) 
degrees (i.e., the leg being fully straightened). 38 C.F.R. 
§ 4.71a, Plate II. 

Under Diagnostic Code 5260, flexion of a knee limited to 45 
degrees is 10 percent disabling, flexion limited to 30 
degrees is 20 percent disabling, and flexion limited to 15 
degrees is 30 percent disabling.

Under Diagnostic Code 5261, extension limited to 10 degrees 
is 10 percent disabling, extension limited to 15 degrees is 
20 percent disabling, and extension limited to 20 degrees is 
30 percent disabling. 

Another potential Diagnostic Code is Diagnostic Code 5257.  
Under Diagnostic Code 5257, the criteria for a 10 are either 
slight recurrent subluxation or instability.   

Both VA examinations, in 2005 and 2006, found full range of 
motion of the right knee, and that later examination noted no 
change in motion upon repeated testing of motion and against 
resistance. While the Veteran complained of weakness, pain, 
and instability on examination in 2006, the actual 
examination found none. Moreover, that examination noted that 
he had normal function during flare-ups. 

For these reasons, the preponderance of the evidence is 
against the claim for initial rating higher than 10 percent 
based on flexion, extension, or instability. 38 U.S.C.A. § 
5107(b).

Varicose Veins of the Right Leg

Under 38 C.F.R. § 4.104, Diagnostic Code 7120 (varicose 
veins) a 20 percent rating is warranted when there is 
persistent edema, incompletely relieved by elevation of 
extremity with or without beginning stasis pigmentation or 
eczema.  A note to Diagnostic Code 7120 states that 
evaluations for varicose veins are for involvement of a 
single extremity and that if more than one extremity is 
involved, each extremity is rated separately, for combination 
under 38 C.F.R. § 4.25, using the bilateral factor, 38 C.F.R. 
§ 4.26, if applicable. 

The initial 10 percent rating encompasses the use of 
compression stockings as well as edema or aching and fatigue 
after prolonged standing or walking. Here, however, there was 
no evidence on either the 2005 or 2006 VA examination of 
persistent edema, although the later examination found 
varicose veins on the lower portion of the lower extremity 
and superficial varicose veins on the foot. 

For this reason, the preponderance of the evidence is against 
the claim for initial rating higher than 10 percent.  38 
U.S.C.A. § 5107(b).

Varicose Veins of the Left Leg

Under 38 C.F.R. § 4.104, Diagnostic Code 7120 (varicose 
veins) a 20 percent rating is warranted when there is 
persistent edema, incompletely relieved by elevation of 
extremity with or without beginning stasis pigmentation or 
eczema. 

The initial 10 percent rating encompasses the use of 
compression stockings as well as edema or aching and fatigue 
after prolonged standing or walking. Here, however, there was 
no evidence on either the 2005 or 2006 VA examination of 
persistent edema.  

For this reason, the preponderance of the evidence is against 
the claim for initial rating higher than 10 percent.  38 
U.S.C.A. § 5107(b).

Right Ankle Sprain

The right ankle disability is currently assigned a 
noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic 
Code 5271.  Under Diagnostic Code 5271, the criterion for a 
compensable rating of 10 percent is moderate limited motion 
of the ankle. 

As range of motion of the right ankle in dorsiflexion was 
full on VA examinations in 2005 and 2006, i.e., dorsiflexion 
of 20 degrees and plantar flexion of 45 degrees, the range of 
motion does not more nearly approximate or equate to moderate 
limitation of motion of the ankle, required for a 10 percent 
rating under Diagnostic Code 5271, considering additional 
functional loss and repetitive use under 38 C.F.R. §§ 4.40, 
4.45, 4.59. 

And the Veteran has not had right ankle surgery and there is 
no evidence of malunion or ankylosis which would warrant 
consideration of Diagnostic Codes 5270, 5272, 5273, and 5274.  

For these reasons, the preponderance of the evidence is 
against the claim for initial rating higher than 10 percent.  
38 U.S.C.A. § 5107(b).

Scarring Due to Stasis Ulcers of the Right Lower Extremity

The criteria for evaluating the residual stasis ulceration 
scars, under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 
Diagnostic Code 7805, were revised effective October 23, 
2008. They were specifically limited to claims filed on or 
after October 23, 2008. Here, the Veteran's initial claim 
(from which the initial rating action stems) for service 
connection was received in 2005. Accordingly, the revised 
schedular rating criteria are not applicable in this case and 
those in effect prior to October 23, 2008, must be applied. 

As the site of the scars is the right leg, the rating 
criteria for disfigurement of the head, face, or neck under 
Diagnostic Code 7800 do not apply. 

Diagnostic Code 7802, pertaining to a superficial scar, 
covering 144 sq. inches or more without limited motion, does 
not apply because the scars do not cover 144 sq. inches. 

The residual stasis ulceration scars are hypo-pigmented but 
are not depressed or adherent to underlying tissue.  The 2006 
VA examination found the scars were superficial and not 
inflamed or keloid.  Diagnostic Code 7803, pertaining to an 
unstable scar, does not apply because the scars are stable. 

Diagnostic Code 7804, pertaining to painful scar, does not 
apply because the scars were not tender on VA examination in 
2006.

Diagnostic Code 7805, pertaining to limitation of function, 
does not apply to the extent there is no limitation of motion 
or other function impairment due to the scarring. 

For these reasons, the preponderance of the evidence is 
against the claim for initial rating higher than 10 percent.  
38 U.S.C.A. § 5107(b).

Scarring Due to Stasis Ulcers of the Left Lower Extremity

Again, as the site of the scars is on the left leg, the 
rating criteria for disfigurement of the head, face, or neck 
under Diagnostic Code 7800 do not apply. 

Diagnostic Code 7802, pertaining to a superficial scar, 
covering 144 sq. inches or more without limited motion, does 
not apply because the scars do not cover 144 sq. inches. 



The residual stasis ulceration scars are hypo-pigmented but 
are not depressed or adherent to underlying tissue.  The 2006 
VA examination found the scars were superficial and not 
inflamed or keloid.  Diagnostic Code 7803, pertaining to an 
unstable scar, does not apply because the scars are stable. 

Diagnostic Code 7804, pertaining to painful scar, does not 
apply because the scars were not tender on VA examination in 
2006.

Diagnostic Code 7805, pertaining to limitation of function, 
does not apply to the extent there is no limitation of motion 
or other function impairment due to the scarring. 

For these reasons, the preponderance of the evidence is 
against the claim for initial rating higher than 10 percent.  
38 U.S.C.A. § 5107(b).

Extraschedular Consideration

The Board is precluded from assigning an extraschedular 
rating under 38 C.F.R. § 3.321(b)(1) in the first instance 
but is not precluded from considering whether the case should 
be referred to the Director of VA's Compensation and Pension 
Service. 

The threshold factor for extraschedular consideration is a 
finding that the evidence presents such an exceptional 
disability picture that the available schedular ratings for a 
service-connected disability are inadequate.  This is 
accomplished by comparing the level of severity and 
symptomatology of the service-connected disability with the 
established criteria.

If the criteria reasonably describe the Veteran's disability 
level and symptomatology, then the disability picture is 
contemplated by the Rating Schedule, and the assigned 
schedular evaluation is, therefore, adequate and referral for 
an extraschedular rating is not required.  Thun v. Peake, 22 
Vet. App. 111, 115 (2008).



Here the rating criteria reasonably describe the Veteran's 
disability levels and symptomatology, and provided for higher 
ratings for additional or more sever symptoms, which have not 
been shown.  For this reason, the disability pictures are  
contemplated by the Rating Schedule, and the assigned 
schedular ratings are adequate, and no referral for an 
extraschedular rating is required under 38 C.F.R. 
§ 3.321(b)(1). 


ORDER

An initial rating higher than 10 percent for a lumbosacral 
strain is denied. 

An initial rating higher than 10 percent for a left ankle 
sprain is denied. 

An initial rating higher than 10 percent for chondromalacia 
of the right knee, including surgical residuals, is denied. 

An initial rating higher than 10 percent for varicose veins 
of the right leg is denied. 

An initial rating higher than 10 percent for varicose veins 
of the left leg is denied. 

An initial compensable rating for a right ankle sprain is 
denied. 

An initial compensable rating for scarring due to stasis 
ulcers of the right lower extremity is denied. 

An initial compensable rating for scarring due to stasis 
ulcers of the left lower extremity is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs